Bank of N.Y. Mellon v Spero | NYSC - The evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered or assigned to it prior to the commencement of the action.

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Bank of N.Y. Mellon v Spero | NYSC – The evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered or assigned to it prior to the commencement of the action.

Bank of N.Y. Mellon v Spero | NYSC – The evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered or assigned to it prior to the commencement of the action.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK

THE BANK OF NEW YORK MELLON FKA THE
BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE,CWMBS INC.,
CI-IL MORTGAGE PASS-TH.ROUGH TRUST 2002-26,
MORTGAGE PASS THROUGH CERTIFICATES,
SERIES 2002-26
Plaintiff,

– against –

JAMES SPERO, MAUREEN KEEFE-SPERO, CHASE
BANK USA, N.A., AMERICAN EXPRESS BANK, FSB,
FAIRFIELD AT RIVERHEAD LLC., JPMORGAN CHASE
BANK, N.A., NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, JOSE ANTONIO PADILLA
NEW YORK ST A TE ON BEHALF OF UNIVERSITY
HOSPITAL IP, UNITED STATES OF AMERICA,
JOHN SPERO,
Defendants.

EXCERPT:

Plaintiff now moves for summary judgment on its complaint contending that defendants Spero failed
to comply with the terms of the loan agreement and mortgage, that their answer raised no issues of fact for
trial and, that no valid affirmative defenses were raised by the defendants. In support of its motion, plaintiff
submits among other things: the sworn affidavit of Jay Robert Karnes, assistant vice president of Bank of
America, N.A., as successor by merger to BAC Home Loans Servicing, LP (BANA); the affirmation of
Mark Golab, Esq.; the affirmation of Peter Dinsmore, Esq. pursuant to the Administrative Order of the Chief
Administrative Judge of the Courts (A0/431/11 ); the pleadings; the note, mortgage, corrective assignment
of mortgage; a notice of default; notices pursuant to RP APL§§ 1320, 1303 and 1304; affidavits of service
for the summons and complaint; an affidavit of service of the instant summary judgment motion upon the
attorneys for defendants Spero; and a proposed order appointing a referee to compute. Defendants Spero
cross-move seeking an order dismissing plaintiffs complaint or in the alternative, a denial of plaintiffs
summary judgment application. Plaintiff in reply opposes defendants’ cross-motion.
“(l]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the
production of the mortgage, the unpaid note, and evidence of default” (Republic Natl. Bank of N. Y. v
O’Kane, 308 AD2d 482, 764 NYS2d 635 [2d Dept 2003]; see Argent Mtge. Co., LLC v Mentesana, 79
AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Once a plaintiff has made this showing, the burden then
shifts to defendant to establish by admissible evidence the existence of a triable issue of fact as to a defense
(see Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).

Where, as here, standing is put into issue by the defendant, the plaintiff is required to prove it has
standing in order to be entitled to the reliefrequested (see Deutsche Bank Natl. Trust Co. v Haller, 100
AD3d 680, 954 NYS2d 551 [2d Dept 2011]; US Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578
[2d Dept 2009]; Wells Fargo Bank Minn., NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept
2007]). In a mortgage foreclosure action “[a] plaintiff has standing where it is the holder or assignee of both
the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA
v Hernandez. 92 AD3d 843, 939NYS2d 120 [2d Dept 2012]; US Bank, NA v Collymore, 68 AD3d at 753;
Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]).

Here, plaintiff has failed to establish,primafacie, that it had standing to commence this action. The
evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically
delivered or assigned to it prior to the commencement of the action. The affidavit from BANA’s assistant
vice president, Jay Robert Karnes, did not provide any factual details of a physical delivery or assigm11ent
of the note and thus. failed to establish possession of the note prior to commencing this action (HSBC Bank
USA v Hernandez, 92 AD3d 843; Citimortgage, Inc. v Stose/, 89 AD3d 887, 934 NYS2d 182 [2d Dept
2011 ]). Conclusory boiler plate statements such as “[p ]laintiff is the holder of the note” will not suffice
when standing is raised as a defense (see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 931
NYS2d 630 [2d Dept 2011]; Aurora Loan Services, LLC v Weis bl um, 85 AD3d 95, 923 NYS2d 609 [2d
Dept 2011 ]).

Furthermore. the submissions before the court do not establish through competent evidence the
authority or Jay Robert Karnes, an assistant vice president to BANA, a non-party to this mortgage
foreclosure action. to act on behalf of plaintiff Bank of New York in this matter (see HSBC v Betts, 67
AD3d 735. 888 NYS2d 203 [2d Dept 2009]). Similarly, the submissions fail to establish through competent
evidence that BANA is the servicing agent for plaintiff Bank of New York. Moreover, the affidavit of Jay
Robert Karnes erroneously states that he is ” … authorized to sign this affidavit on behalf of plaintiff, Bank
of America, N .A … ” (emphasis added). Thus, plaintiff has also failed to present evidence sufficient to
support the entry of an order for the relief requested.

Lastly. plaintiffs application is procedurally defective for failure to comply with CPLR 3215 (g)(l)
and CPLR 321 ‘i (g)(3}(i) as same applies to those defaulting defendants who were served and have neither
appeared nor answered.

Since defendants’ cross-motion (002) has successfully raised an issue of fact as to standing,
 plaintiffs motion for summary judgment against defendants Spero, to strike their answer and for an order
or reference is denied. Defendants’ cross-motion is granted solely to the extent provided for herein.
The foregoing constitutes the decision and order of the court.

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